Public Lands

Inequality Today: Unfinished Work

The first step in addressing the problem is to be clear about the facts.

More than a half century after Martin Luther King’s death, his work is still unfinished.  Sadly, despite his efforts and those of many others, inequality remains a reality along multiple, interrelated dimensions: race, income, and geography.   Inequality is not merely economic; it involves differences in health and life expectancy — and in exposure to pollution …

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Who the Heck is Patrick McHenry?

And what does he think about the environment?

Patrick McHenry has been Speaker pro tem with limited powers, but there’s talk about trying to bump him up, giving him full power as Speaker for a limited time so the House can get back to work. That might be just a flash in the pan, but he turns out to be interesting enough to …

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The NEPA Amendments in Nine Blog Posts

Surveying the legal problems of the biggest NEPA changes in the past fifty years.

On June 5, President Biden signed the debt ceiling bill, which provides the first significant rewrite of NEPA since it was passed over fifty years ago.  In a series of blog posts, I’ve explored some of the legal issues raised by the amendments. My goal has been highlighting problem areas rather than providing anything like …

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Nature and the Pursuit of Happiness

The original understanding of an inalienable right.

What is the “pursuit of happiness,” which the Declaration of Independence says is an inalienable right? It sounds like this is about  freedom from governmental restrictions on your activities.  So, in modern terms, it seemed to mean that the government can’t stop you from “doing your own thing.” But that can’t be right. The Declaration …

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NEPA 2.0 and Transmission Projects

Will the new NEPA provisions speed approval of urgently needed projects?

In terms of the energy transition, the most important question about the recent NEPA amendments is whether they streamline permitting for transmission projects. The answer is complicated. We can divide transmission projects into two groups. The first group consists of transmission projects where federal involvement is limited to specific segments, such as stream crossings requiring …

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Having the Fox Guard the Henhouse?

Delegating Environmental Reviews to Project Sponsors

One of the most important provisions, of the new NEPA law, § 107(f), allows the lead agency to delegate preparation of environmental reviews to project applicants. There are unsettled questions about when this provision applies and how it interfaces with other parts of NEPA. There are clear conflicts of interest in assigning this role to …

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Centralizing Environmental Reviews under NEPA’s New Section 107

Sec. 107 is the key permitting reform applying to major projects. Will it work?

The 2023 Amendments to NEPA tweak current regulations in various ways in the name of permitting reform. Those changes make it easier to exempt smaller projects or cover them with programmatic impacts statements.  The key issue, however, is going to be the effectiveness of new section 107, the main provision aimed at large-scale projects like …

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NEPA and the Debt Deal

Will the permitting sections of the debt ceiling bill undermine environmental reviews?

Prior to the release of the text of the debt ceiling bill Sunday night, press reports had mentioned only a couple of provisions relating to environmental impact statements. It turns out there’s a lot more. The bill would make numerous changes in the statute governing impact statements, the National Environmental Policy Act of 1969 (NEPA). …

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Critical Native American Water Rights Cases Come Before the Supreme Court: Arizona v. Navajo Nation

The Navajo Nation Has the Equities on Its Side, But the U.S. Department of the Interior May Well Have the Law in Its Favor

Today the U.S. Supreme Court hears oral arguments in the last natural resources cases on its docket this Term: Arizona v. Navajo Nation and U.S. Department of the Interior v. Navajo Nation.  These consolidated cases are consequential for several reasons: to determine the scope of the federal government’s trust obligations to Native American tribes; to …

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Did Biden have to approve the Willow oil project?

Northeast National Petroleum Reserve in Alaska.

ConocoPhillips has existing lease rights. But the Biden administration had tools to curtail those rights to limit harms.

Although the Biden administration has approved the Willow oil drilling project on Alaska’s North Slope—the largest proposed oil drilling on U.S. public land in several decades—the legal questions are far from settled.  Much of the media coverage so far has focused on the political dynamics driving the decision (as noted with some alarm here and …

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